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On September 21, 2011, H.R. 2885, legislation to make E-Verify mandatory across the nation, passed the House Judiciary Committee by a party line vote of 22-13. Does that mean the bill is on a smooth path to become law?

The major hurdle to be cleared for any House legislation is to receive time for debate on the floor of the House of Representatives. It is up to the House leadership to decide whether a bill gets that far. Unlike spending bills, which are considered “must-pass” pieces of legislation, bills on other topics are not guaranteed floor time.

If E-Verify legislation passes the House, it faces an uncertain future in the U.S. Senate. No Democrats voted for the bill in the House Judiciary Committee. While that does not mean the same will happen in the Senate, it’s reasonable to assume the bill would get limited Democratic support.

What does E-Verify legislation have going in its favor? In its favor, the legislation sports a surface appeal as a way to prevent the hiring of illegal immigrants and has the support of anti-immigration groups. H.R. 2885 would make mandatory for all employers an electronic employment verification system to check (primarily) whether new hires are eligible to work in the United States. Also, in its favor, the legislation has the support of business organizations that include the U.S. Chamber of Commerce, since it would establish a single national standard for E-Verify, rather than a patchwork of state requirements. Finally, the bill has gained support among Republicans, in part because it is seen as a technological fix to a difficult to solve problem.

What is working against mandatory E-Verify legislation? The biggest obstacle a mandatory E-Verify bill faces is it lacks support among Democrats, which is a particular problem in the Senate. Many Democrats see H.R. 2885 as legislation that will make life more difficult for legal workers, due to the potential for false “positives” when using the system. They also believe to the extent E-Verify affects illegal immigrants it will push them further into black market employment. Democrats would likely support mandatory E-Verify if coupled with ways to make it easier to work legally in the United States and to legalize many of the those now working in the country without legal status.

Another factor working against mandatory E-Verify legislation is vocal opposition to the bill from the agriculture industry. The primary large agriculture organizations, including the Agriculture Coalition for Immigration Reform (ACIR), oppose the bill. Rep. Dan Lungren (R-CA) said in the Judiciary Committee that making E-Verify mandatory would “devastate” California’s agriculture industry unless a workable agricultural temporary visa system was instituted at the same time. Since the agriculture industry has been an important Republican supporter it remains to be seen whether Republicans in the House or Senate want to fight for legislation opposed by growers.

There has been no action on the bill in the past week, since the House of Representatives has not been in session. Judge Gideon Tucker (and later Mark Twain) once said, “No Man’s life, liberty or property is safe while the legislature is in session.” The House is back in session this week.